Civ Pro, §BMaranville
December, 2003
Feedback on Complaint Drafting Exercise
Overall
All groups did an excellent job on the complaints. You thought hard about your legal theory,relief, choice of forum, and the specificity of the complaint. You’ll be way ahead of the game when you go to draft your first complaint in a real case. (If you don’t believe me, I can tell you a story or two.) The areas in which many of you are struggling involve the major challenges in drafting a complaint, but you’re all ready to sort them out. The occasional mistakes that individual groups made are simply a reminder of how much you have to know in order to avoid taking a wrong turn. Keep at it!
They Key Points
Alleging Jurisdiction and Venue
Because federal court is a court of limited jurisdiction, plaintiff must plead that jurisdiction is proper. But we’re not talking just any kind of jurisdiction, rather subject matter jurisdiction. FR 8(a)(1) does not make that clear, but it’s implicit in the concept of limited jurisdiction and in Form 2 on p. 170 of the supplement. Not necessary to plead subject matter jurisdiction in state court.
It is not improper to plead personal jurisdiction or venue, but it’s not required and not conventional, though I’ve seen it done.
Venue in federal court is by district, e.g. Western District of Washington, not by county. For federal court, many of you relied on 28 U.S.C. §1391(c), but it simply defines residence of a corporation for purposes of §1391(a)(1). Start your analysis with §1391(a).
Stating a Claim: Elements
Rule 8(a) requires that the complaint set out a “short and plain statement of the claim showing that the leader is entitled to relief”. In order to satisfy the “short and plain statement of the claim” requirement, it is safest to include an allegation about what happened that corresponds to each “element” of your claim. (Remember your mantra: duty, breach, causation, damages.). One of my major goals for this exercise was for you to see the role that elements play in stating a claim. Every group seemed to understand this, and included allegations for each element.
Stating a Claim: Level of Specifity
As you saw in Forms 3-18 in the Appendix of Forms (see pp. 183-191 in your supplement), the allegations in the complaint ordinarily are not required to be very detailed or specific. It is conventional to plead factual allegations at an intermediate level of abstraction, going beyond conclusory statements without stating all the details that the witnesses will testify to. Lawyers have several reasons for this, including convention -- do something that looks familiar to the judge and opposing counsel -- and strategy -- an intermediate level of specificity will get you past a 12(b)(6) motion to dismiss for failure to state a claim, without locking you in to all the details of plaintiff’s version of events, which are almost guaranteed to be contested and may not be critical. The cases on amending pleadings provide a reminder of why you want to leave yourself some wiggle-room.
Over half of you stated your factual allegations in more detail than is conventional or, in my view, strategically useful. TMI (too much information), as my daughters say. This is one of those “less is more” situations. To think further about this issue, I encourage you to compare your complaints and my comments.
Stating a Claim: The Role of Law
In order to satisfy Rule 8(a), you do not have to cite the applicable law, set out your legal theory, or explicitly describe the elements of your claim.
Lawyers often do set out the law or legal theory in the complaint. Rule 8(e)(2) specifically allows pleading in the alternative, and speaks of setting out “counts”. When lawyers structure the pleading in counts they typically name the source of law applicable to each count. Some groups used that format. Though it is permissible it struck me as overkill for this relatively simple claim that would involve only one “count”.
It can be strategically useful to include a reference to the law. If you are bringing a novel claim, or one in which the legal elements are not yet settled, identifying the relevant law and the elements you think make up the claim will be it easier for the judge to decide whether in fact your complaint does state a claim. (That’s a double-edged sword, however, as it may also make it easier for the court to see that you haven’t stated a claim.)
Likewise, if you think you have a good claim and are aiming at settlement, you may want to use the complaint strategically to begin convincing your opponent that you know what you are doing, and you have a good case.
Specific Problem Areas
Elements and Affirmative Defenses
While plaintiffs want to include allegations regarding every legal element of the claim, they do not want to plead issues that aren’t part of their claim, or that defendant is required to raise by way of affirmative defense. Why not? Two reasons. First, if plaintiff anticipates a defense, that may change the burden of persuasion, as the court may place the burden of proving absence of the facts consitution the defense on the plaintiff. Second, if plaintiff anticipates a defense, without including allegations to rebut it, plaintiff will be subject to a 12(b)(6) motion for failure to state a claim on which relief may be granted. If you are in a group that anticipated a defense, make sure you understand this.
Rule 11 Requirements
Keep in mind that Rule 11(a) specifically requires that at least one attorney of record must sign every pleading. Several groups omitted either the signature, or both the signature and the name of the attorneys.
Jury Demand
Many of you included a demand for jury in your complaint. That’s a good idea, though not required. Under FR 38(d) the right to a jury trial is waived unless the party demands a jury trial. That demand may be made in the pleading, or separately. So thejury demand is not required to be made in the complaint, but doing so routinely avoids inadvertent waiver. Note that it is unnecessary to demand “trial by judge”, i.e. a bench trial, because 1) that is the default mode in the absence of a demand for jury trial and 2) as we’ll see next quarter, if defendant properly demands a jury trial, it’s entitled to one; plaintiff can’t override the request for a jury trial with a demand for a bench trial.
Picky Drafting and Format Issues
In the “things you don’t need to know for the exam but will want to be aware of down the road” category:
It’s conventional to double space the body of legal papers. In some documents (i.e. orders) you will occasionally need to interlineate (add material between the lines) and that is much easier if the document is double spaced. The use of 12 point type font is also conventional, and required under some rules. See, e.g. Washington’s Rules of Appellate Procedure 10.4(a)(3).
I’m a big fan of the “plain English” approach to legal drafting to the extent it can be done. So I don’t use “said” to refer to something previously mentioned, as in “the said document”. And I don’t start my pleadings with “Comes now the plaintiff and for cause of action alleges as follows” or similar verbiage. Many lawyers still do these things and you may work for ones who insist that you follow suit, but it’s not necessary.
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